{ "id": 8567107, "name": "SAMUEL BITTLE v. WILLIAM JOSEPH JARRELL and GUILFORD DAIRY COOPERATIVE, INC.", "name_abbreviation": "Bittle v. Jarrell", "decision_date": "1967-05-03", "docket_number": "", "first_page": "266", "last_page": "270", "citations": [ { "type": "official", "cite": "270 N.C. 266" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "67 S.E. 2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "129 S.E. 2d 512", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 766", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562752 ], "opinion_index": 0, "case_paths": [ "/nc/258/0766-01" ] }, { "cite": "136 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575404 ], "opinion_index": 0, "case_paths": [ "/nc/261/0730-01" ] }, { "cite": "98 S.E. 2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "246 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626275 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/246/0334-01" ] }, { "cite": "6 S.E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597345 ], "opinion_index": 0, "case_paths": [ "/nc/217/0001-01" ] }, { "cite": "187 S.E. 769", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "210 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627653 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/210/0559-01" ] }, { "cite": "163 S.E. 600", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { 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"category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "185 N.C. 142", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655549 ], "opinion_index": 0, "case_paths": [ "/nc/185/0142-01" ] }, { "cite": "74 S.E. 967", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "159 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658697 ], "opinion_index": 0, "case_paths": [ "/nc/159/0369-01" ] }, { "cite": "86 S.E. 348", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "169 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659294 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/169/0421-01" ] }, { "cite": "35 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11275823 ], "opinion_index": 0, "case_paths": [ "/nc/35/0450-01" ] }, { "cite": "42 S.E. 2d 518", 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"1171eeb242c19da4aa87b26c82b93b0ac60537ca92158f8580ce72b3dd40de56", "simhash": "1:1342393d383d68f8", "word_count": 1569 }, "last_updated": "2023-07-14T21:31:56.885447+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SAMUEL BITTLE v. WILLIAM JOSEPH JARRELL and GUILFORD DAIRY COOPERATIVE, INC." ], "opinions": [ { "text": "PARKER, C.J.\nCivil action by plaintiff to recover damages for personal injuries and injury to an automobile allegedly- proximately caused by the actionable negligence of William Joseph Jarrell in the operation of a truck owned by the corporate defendant, as. an employee of the corporate defendant and acting in the course of his employment. Defendants filed a joint answer denying negligence, and, as a further answer and defense, conditionally pleading- contributory negligence of plaintiff as a bar to any recovery upon his part.\nBoth plaintiff and defendant introduced' evidence. After the .charge of the court, the jury returned a verdict finding that the plaintiff was injured and his property damaged by the negligence of the defendants as alleged in the complaint, that the \u201cdefendant\u201d was free from contributory negligence, and awarded plaintiff damages to his automobile in the sum of $800 and damages to his person in the sum of $50. After the verdict, the trial judge being of the opinion that the \u201cverdict should be set aside as a matter of law for error by the Court in failing to grant the defendants\u2019 motion for nonsuit at the close of all the evidence,\u201d entered judgment adjudging and decreeing \u201cthat the jury\u2019s verdict be set aside for error of law by the Court in failing to grant the defendants\u2019 motion for non-suit at the close of all the evidence and the cause continued for the term.\u201d From the judgment entered, plaintiff appeals.\nPlaintiff assigns as error \u201cthat the Court erred in entering judgment of nonsuit (R. pp. 41-42) after- the jury had answered the issues in favor of the plaintiff.\u201d This assignment of error is-not happily worded, because the court did not enter judgment of nonsuit but set the jury's verdict aside for error of law for insufficiency of evidence and continued the case. Considering the record and the briefs of the parties, we interpret this assignment of error in effect as meaning that the judge erred in setting the verdict aside as a matter of law for insufficiency of the evidence to support it. This assignment of error is sustained.\nIn Ward v. Cruse, 234 N.C. 388, 67 S.E. 2d 267, the Court said:\n\u201c(A) trial judge may set aside a verdict in his discretion. He may set it aside as a matter of law for errors committed during the trial, and from this order the aggrieved party may appeal. Culbreth v. Mfg. Co., 189 N.C. 208, 126 S.E. 419; Akin v. Bank, 227 N.C. 453, 42 S.E. 2d 518.\n* \u00ab *\n\u201cWhen the issuable facts are settled by the verdict of the jury, the rights of the parties are thereby fixed and determined and the successful litigant is entitled to judgment on the verdict, subject only to (1) the right of the presiding judge to set aside the verdict, or to dismiss the action for want of jurisdiction or for failure of the complaint to state a cause of action, and (2) the right of the aggrieved litigant to appeal.\n\u201cThis rule applies to and forbids dismissal of the action by judgment as in case of nonsuit, after verdict, for insufficiency of the evidence. Dickey v. Johnson, 35 N.C. 450; Riley v. Stone, supra [169 N.C. 421, 86 S.E. 348]; Vaughan v. Davenport, 159 N.C. 369, 74 S.E. 967; Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Jernigan v. Neighbors, supra [195 N.C. 231, 141 S.E. 586]; Price v. Insurance Co., 201 N.C. 376, 160 S.E. 367; Godfrey v. Coach Co., supra [200 N.C. 41, 156 S.E. 139]; Batson v. Laundry, 202 N.C. 560, 163 S.E. 600; Jones v. Insurance Co., supra [210 N.C. 559, 187 S.E. 769]; Bruton v. Light Co., 217 N.C. 1, 6 S.E. 2d 822.\n\u201cThe power of the court to grant an involuntary nonsuit is altogether statutory and must be exercised in accord with the statute. G.S. 1-183. Riley v. Stone, supra. While the motion is in fieri until verdict is rendered, Bruton v. Light Co., supra, the ruling on the motion may not be reversed, Price v. Insurance Co., supra, or entered for the first time, Jernigan v. Neighbors, supra; Batson v. Laundry, supra, after the issuable' facts are determined by the jury.\u201d\nTo the same effect, Temple v. Temple, 246 N.C. 334, 98 S.E. 2d 314; Bethea v. Kenly, 261 N.C. 730, 136 S.E. 2d 38; 1964 Pocket Parts by Dickson Phillips, Dean, School of Law, University of. North Carolina, 2 McIntosh, N. C. Practice and Procedure, 2d Ed.,.\u00a7 1598, p. 31.\nIn Tayloe v. Telephone Company, 258 N.C. 766, 129 S.E. 2d 512, the Court said:\n\u201cThe record discloses that after verdict the very able judge who tried this case came to the conclusion that the motions for nonsuit should have been allowed. However, he was then powerless to grant the motion under the rule in this State which forbids dismissal of an action after verdict by judgment as of non-suit for insufficiency of evidence. Ward v. Cruse, 234 N.C. 388, 67 S.E. 2d 257; Temple v. Temple. 246 N.C. 334, 98 S.E. 2d 314.\u201d\nThis is said in 88 C.J.S., Trial, p. 585: \u201cOrdinarily, a nonsuit may not be granted after the jury have returned a verdict, even though the motion was made before the case was submitted to the jury and decision thereon reserved.\u201d Corpus Juris Secundum cites in support of this statement Ward v. Cruse, supra, and Jones v. Insurance Co., 210 N.C. 559, 187 S.E. 769.\nWe adhere to the rule stated in Riley v. Stone, 169 N.C. 421, 86 S.E. 348, that \u201cHis decision, twice made, that there was evidence to go to the jury, was final upon that point, subject to exception made and entered at the time.\u201d The judgment setting aside the jury\u2019s verdict \u201cfor error of law by the Court in failing to grant the defendants\u2019 motion for nonsuit at the close of all the evidence\u201d is vacated.\nThe record shows that the second issue submitted to the jury, taken to the jury room by them, and returned by them to the judge in open court answered \u201cNo\u201d reads as follows: \u201cIf so, did the defendant, by his own negligence, contribute to his injuries and damages, as alleged in the Answer?\u201d In its charge, the court in part charged as follows: \u201cBut, if you answer the first issue Yes, then you will go and answer the second issue, which reads: 'If so, did the defendant by his own negligence contribute to his injuries and damages, as alleged in the Answer?\u2019 \u201d We have before us an addendum to the record in the form of a stipulation signed by attorneys of record for the parties as follows:\n\u201cWhereas the second issue in the above entitled matter erroneously referred to the defendant when reference should have been made to the plaintiff and it was the intention of all parties and proper instruction was made to the jury concerning said issue as it was intended that such should have read; it is, therefore, stip\u00falated between counsel for all parties to this action that the second issue read as follows: . \u25a0\n\u201c \u20182. If so, did the plaintiff, by his own negligence, contribute to his injuries and damages, as alleged in the Answer?\u2019\n\u201cThis 26th day of April, 1967.\u201d\nThe judge\u2019s charge was oral, the issues were in the jury room in writing. We can speculate or conjecture that the jury understood .that the second issue used the word \u201cdefendant\u201d where it should have used the word \u201cplaintiff,\u201d but we cannot be sure. What effect it had upon the jury, and whether the jury\u2019s intention. was to find the defendant free from contributory negligence or-the plaintiff free from contributory negligence, we cannot know with certainty; The judgment, as it stands, nullifies the verdict; if it is vacated and the plaintiff requests a judgment in accordance with the verdict, he will be confronted with the second issue reading: \u201cIf so, did the defendant, by his own negligence, contribute to his injuries and damages, as alleged in the Answer?\u201d In this confusing state of the verdict, we think the safest course to follow is this: The judgment is vacated, the verdict set aside by us, and a new trial ordered.\nNew trial.", "type": "majority", "author": "PARKER, C.J." } ], "attorneys": [ "Gerald C. Parker for plaintiff appellant. .", "Lovelace, Hardin & Bain by Edward B. Hardin for defendant appellees." ], "corrections": "", "head_matter": "SAMUEL BITTLE v. WILLIAM JOSEPH JARRELL and GUILFORD DAIRY COOPERATIVE, INC.\n(Filed 3 May, 1967.)\n\u20221. Trial \u00a7\u00a7 30,- 53\u2014\nThe court may not set aside-the verdict of the jury on the ground that the court had committed error of law in denying defendant\u2019s motions for nonsuit aptly made, or for the insufficiency of the evidence as a matter of law to support the verdict. \u2018 1\na. Appeal and Error \u00a7 55\u2014\nWhere the record discloses that the second issue submitted in a negligence action was whether defendant by his own negligence contributed to his injuries, the judgment must be vacated and the cause remanded for a new trial, notwithstanding stipulations of the parties that the second issue should correctly read whether plaintiff: by his own negligence1 contributed to his injuries, since whether the jury understood that the second issue used the word \u201cdefendant\u201d where it should have used \u201cplaintiff\u201d is not certain, and in any event judgment could not be rendered for plaintiff upon the verdict of record.\nAppeal by plaintiff from Johnston, J., 7 November 1966 Session of RANDOLPH.\nGerald C. Parker for plaintiff appellant. .\nLovelace, Hardin & Bain by Edward B. Hardin for defendant appellees." }, "file_name": "0266-01", "first_page_order": 306, "last_page_order": 310 }